Wednesday, January 11, 2006

What We Don't Know About Eminent Domain

At the AALS Property and Local Government Sections joint panel on public use, Vicki Been made an interesting presentation about what we don't know about the real-world application of eminent domain.  In the absence of empirical research on the subject, we don't really have much data on how eminent domain is used by government entities.  The need for empirical data is particularly important now that many legislatures are considering placing post-Kelo restrictions on municipal exercises of eminent domain.  Here's a list of the subjects Been suggested would be good candidates for empirical work:

The costs and benefits of actual uses of eminent domain.

What entity is doing the taking and who pays for the taking?

Is there a differences in eminent domain practices between states or within states?  If so, what explains those differences?

What is being taken?

Do the takings involve private-public partnerships?

What compensation is being paid, and how (and why) does it vary?

Has the use of eminent domain become more or less frequent?  If so, why?  Are municipal attempts at promoting infill development having an impact on the rates?

Why is eminent domain being used rather than a market transaction?  What does the bargaining process look like?  Who settles and who doesn’t?  What is the role of subjective value in the settlement process?  What does holdout problem actually look like?  Do tax issues factor in (e.g., when an exercise of eminent domain is more tax positive for the owner of property than a voluntary sale)?

Are economic development takings a good thing?  Can economic development be effectively done in a patchwork, voluntary fashion, without eminent domain?  What is the long term impact of redevelopment projects?  If restrictions are put on economic development takings, will that lead to more redevelopment projects based on blight?

To this list I'd add:  what is the impact of relocation on people, and is there a difference in this impact between people who are forced out and people who leave voluntarily?  I researched this issue for my Home as a Legal Concept article, and there really isn't that much out there beyond Marc Fried's "Grieving for a Lost Home," a study of people displaced from Boston's West End that was published in Leonard J. Duhl's book The Urban Condition (1963).

[UPDATE:  some text changed in response to a comment]

Ben Barros

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Tracked on Jan 12, 2006 7:29:38 AM


"Is economic development a good thing? Can economic development be effectively done in a patchwork, voluntary fashion, without eminent domain? "

I am somewhat boggled by the questions.

Question economic growtth may be legitimate but how it relates specifically to eminent domain is beyond me.

As to the second question...uh, just take a look at our terrifically vibrant economy -- the vast vast majority of which is done without condemnation -- and I think that the answer is obvious: Of course! That's how free markets work.

Well, leave it to intellectuals to overanalyze.

Posted by: David Sucher | Jan 11, 2006 6:43:07 PM

Whoops, that should have been "Are economic development takings a good thing" -- now fixed.

I'd tend to agree with David that the market works, but the larger point is that we need empirical data to either back up that belief or demonstrate that it is wrong.

Posted by: Ben Barros | Jan 12, 2006 6:43:00 AM

Re: What We Don't Know About Eminent Domain:

For the record, the Institute for Justice (which represented plaintiffs in Kelo as part of a national effort to revise eminent domain law) has produced two documents which purport to provide information: Dana Berliner, Public Power, Public Gain (Institute for Justice April 2003) and
Dana Berliner, Government Theft: Top 10 Abuses of Eminent Domain (Institute for Justice, 2005)

Unfortunately, they are pure advocacy pieces rather than serious empirical research, so they neither answer Prof. Been's questions, nor do they shed much useful light on the difficult issues.

Posted by: Tim Iglesias | Jan 13, 2006 4:48:29 PM

I should add that Been mentioned Berliner's work in her presentation. Without any other data, it is hard to evaluate Berliner's work. I'd think that her work is accurate; the big question I have is whether it presents a complete picture.

Posted by: Ben Barros | Jan 13, 2006 6:54:50 PM

Perhaps I should explain the basis for my previous characterization of the IFJ reports as not “serious empirical research.” I have three concerns which go beyond Ben's concern that the reports may not be presenting the "whole picture":
1. It appears that there are research design problems that may have introduced bias in the data observed, including a lack of any one specific, objective definition of “eminent domain abuse.”
2. There may be errors in the collection of data producing essentially "bad" data, e.g. relying on newspaper and other media reports that do not necessarily include all the information that would be required to determine if an incident should qualify as “eminent domain abuse.”
3. Assuming that there are no research design problems and no errors in the collection of data, you could have reasonable differences in the interpretation of the data, but the reports do not allow for or consider any alternative interpretation of the data collected.

Posted by: Tim Iglesias | Jan 18, 2006 4:38:43 PM

With respect to the "Public Power, Private Gain" report by the Institute of Justice (and the Castle Coalition), in addition to perhaps having only limited anecdotal value, the number of cases that the reports says represents an abuse of power is drawn exclusively from new sources. See the star footnote for each state.

Presumably, however, the researcher could have investigated the states that do keep a record of condemnations and sorted through them to pinpoint the abuses, at least among the filed cases.

Posted by: Marcilynn Burke | Jan 25, 2006 5:33:14 PM

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